Judge-alone trials won't necessarily reduce backlogs or boost access to justice, association says
The Toronto Lawyers Association has called for civil juries in Ontario to continue at this time.
In its submissions addressed to Attorney General Doug Downey regarding the possible removal of civil jury trials and proposed amendments to the Courts of Justice Act, the TLA called attention to the legislative mechanisms that are already in place, including those under the Courts of Justice Act, as currently worded, and under the Rules of Civil Procedure. These mechanisms permit judges to determine on a case-by-case basis that certain matters may be unsuitable for jury trials and to order judge-alone trials instead.
The TLA also rejected the application of a blanket restriction to civil jury trials according to the type of action or the area of law involved. The TLA said that, considering the unique circumstances of each trial, judges should instead be given greater discretion to strike jury notices during the pre-trial conference stage, and that the Rules of Civil Procedure should be amended to make this change.
Factors a judge may consider when determining whether to strike a jury notice include the issues of the case, the overall conduct of the proceeding, and the possibility that the jury trial process may be disproportionately time-consuming to the detriment of the jurors or of the courts.
The TLA cited the recent changes to simplified procedure under Rule 76, which increased the monetary limit to $200,000 and removed juries for these cases. The TLA said that, because there has not been a reasonable opportunity to evaluate the impact of these amendments, which were implemented in January, further changes to the civil jury system should be delayed until such an evaluation. The TLA noted that these amendments may have already decreased the number of civil jury trials.
There is a substantive right to civil jury trials in Ontario, especially since it is a province with a diverse population, wrote Brett Harrison, TLA president, in an open letter to Downey. “Against this social backdrop, civil juries provide a vast array of life experiences including different socioeconomic, racial, cultural and gender-based perspectives.”
While the Ministry of the Attorney General appears to be most concerned with tackling the inefficiency of civil juries, said the TLA, shifting to judge-alone trials may not necessarily result in an overall more efficient system. The TLA warned that a restriction on civil juries may lead litigants to perceive a faster and cheaper process and may consequently encourage them to opt for trials in lieu of settlement.
“Further, while a jury trial may take up more court time, it does provide speedier access to justice in that the decision will be delivered promptly by the jury, and not held on reserve by a trial judge for sometimes months while the judge labours over his or her reasons for judgment,” wrote Harrison, who added that there are also fewer appeals from jury trials.
In the alternative, if civil juries were eliminated, certain types of actions should be exempt, said the TLA. Cases with causes of action involving social norms and mores, such as civil sexual abuse cases, civil contempt, privacy breaches, defamation, malicious arrest and prosecution, and Charter breaches should still offer civil juries as an option.